Registering an Out-of-State Corporation in Massachusetts

Massachusetts treats a corporation as foreign when it was incorporated under any law besides its own: another state's, a territory's, or a foreign country's. The corporation remains one legal entity. Registering authorizes it to transact business in the Commonwealth, with the same duties and penalties as a Massachusetts corporation of like character (M.G.L. chapter 156D, section 15.05). The corporation's governance, along with shareholder and director liability, stays under the law of its home jurisdiction.

The statute's word is certificate. Once the Division approves it and the fee is paid, the corporation "shall be considered to be registered." The statutes say "secretary of state," but the office is the Secretary of the Commonwealth, and the filing goes to the Corporations Division at One Ashburton Place in Boston.

Under section 15.01 the duty falls on a foreign corporation either transacting business here or maintaining its usual place of business in the Commonwealth, and section 15.03 allows ten days from the start. Ten days is brief, so treat the first Massachusetts lease, hire or sale as the day the count begins.

The statute names three activities that do count as transacting business, and it says its list is incomplete: owning or leasing real estate here; construction, alteration or repair of any structure, railway or road; and anything else calling for labor performed in the Commonwealth.

Eight things are excused "without more." Working through the statute's order: defending or settling a proceeding; board or shareholder meetings and similar internal affairs; keeping a bank account; running an office, agency, trustee or depository for the corporation's own securities; sales made through independent contractors; orders that require acceptance outside Massachusetts before becoming contracts; a single isolated deal outside a run of repeated ones; and interstate commerce. A seller regulated under the banking or insurance chapters is also excused if it has complied with them.

Real estate counts

Owning a building or holding a lease sits on the activities-that-count side of the line, not the excused side. If that is the corporation's only Massachusetts link, expect to register. For gray areas, such as remote staff or inventory in a Massachusetts warehouse, ask a Massachusetts attorney, because "any other activity requiring the performance of labor" is a broad phrase.

The fee is $400 for a certificate mailed or hand-delivered to the Division. A fax filing is priced lower with a separate expedite charge, and the fee schedule says this filing cannot be made electronically. Make the check payable to the Commonwealth of Massachusetts and send it to Room 1717 at the Boston address, or bring it in person.

What the certificate lists

• The corporation's exact name with its incorporation word or abbreviation and, if the true name is unavailable, the name to be used in Massachusetts
• Where and when it was incorporated, and its duration if not perpetual
• The street address of its principal office
• The Massachusetts registered office, the agent at that office, and the agent's written consent
• Its fiscal year end
• A brief description of what it will do in the Commonwealth
• The names and business addresses of current officers and directors

An officer, the chair of the board or a court-appointed fiduciary signs. The certificate becomes effective on approval, or on a later date within 90 days if the filer names one. A professional corporation adds a regulatory board certificate and an exhibit naming its licensed professionals.

Massachusetts requires one. Section 15.03 asks for a certificate of existence, and the Division's regulation, 950 CMR 113.48, spells it out: the original of a certificate of legal existence or a good standing certificate, issued by the authorized official where the corporation was incorporated, not more than 90 days before submission. A certificate not written in English requires the translator's oath on its translation.

Whoever keeps corporate records in the state of incorporation issues it and names the price. The 90 days are measured back from submission, so a certificate that is almost three months old is risky if the package will sit in the mail. Order it once the rest of the filing is ready.

Section 15.06 bars a foreign corporation's name when it matches, or could easily be confused with, the name of a Massachusetts business or nonprofit, a partnership or any other local entity, a reserved name, or a trademark registered here. A name that fails the usual naming rules can be fixed by adding a word such as "corporation" or "company." If the real name cannot be used, a fictitious name is the fallback: the board adopts it by a resolution the secretary certifies, and the filing includes a pledge not to use the unavailable name here and the city or town doing-business certificate. Holding a name before filing costs $30.

Registered agent

For a corporation Massachusetts says registered agent, and the corporation has to keep a registered office, and an agent at it, at all times (section 15.07). Three kinds of agent qualify: an individual who resides in the Commonwealth; a Massachusetts-organized corporation, nonprofit or LLC; or an outside corporation, nonprofit or LLC that already has authority to transact business here. Wherever the agent works from must be the registered office, and that is a street address in Massachusetts. No office hours are prescribed.

A statement of change swaps the agent or the office for $25 on paper, or nothing online. If an agent resigns, the appointment ends 31 days after the statement is filed. If the agent cannot be found at its address, process may be served on the Secretary of the Commonwealth.

A registered foreign corporation reports every year, and the due date falls two and a half months after its fiscal year closes. The filing fee is $125, and a late report costs $150. The report counts as timely only if it arrives at the Division by the deadline, and a postmark does not help. Online filing reduces the fee to $100.

• Amendments. A certificate of amendment costs $100 and is required after a change in name, duration, state of incorporation, principal office, fiscal year, Massachusetts activities, or the officers and directors. A new name or home state calls for a fresh certificate from home.
• Revocation. A pattern of two years without the required reports or tax filings lets the Secretary begin revoking authority, and revocation follows if the problem remains 90 days after notice. Reinstatement costs $100 and calls for a Department of Revenue certificate, a current home-state certificate, and the past ten years of reports.
• Withdrawal. Leaving takes a Foreign Certificate of Withdrawal at $100, after the reports owed for the last ten fiscal years are on file.

State tax registrations are a different matter from this filing.

Section 15.02 puts a stop on lawsuits. A corporation transacting business without having delivered the certificate may not pursue any claim of its own in Massachusetts courts before it does, and a judge may pause its case to decide whether registration was required. Successors and people who took over its claims face the same bar.

Money is also owed. The Commonwealth is owed whatever late fees would have been charged had the corporation registered on time, along with interest and penalties on them, and for every month or fraction of a month a sum the Secretary of the Commonwealth determines, up to a statutory ceiling. Nothing monthly accrues in the first ten days. The Attorney General is authorized to sue for payment and to bar the corporation's Massachusetts business until it pays.

Corporate acts and contracts are not undone, and the corporation may still defend itself in court. The Secretary of the Commonwealth stands in as its agent for service of process, and the plaintiff pays a modest fee to use that route.

Where a corporation was formed in another state, Mainstay's service takes on the Massachusetts filing. It prepares the Foreign Corporation Certificate of Registration, files it with the Corporations Division, and names a Massachusetts registered agent: no charge for year one, then $149 annually. The corporation's details come from you, and the certificate from home is yours to order from that state, since Mainstay does not order home-state documents. Annual reports and tax filings remain the corporation's job.

The Massachusetts foreign qualification page lists today's checkout lines and total. If you want the agent alone, use the Massachusetts registered agent page. Mainstay prepares filings and acts as agent. It is not a law firm, so take the question of whether your activities amount to transacting business to a Massachusetts attorney.